Tuesday, November 20, 2012
US appeals court: Constitution requires race, sex discrimination
A federal appeals court on Thursday narrowly struck down Michigan's 6-year-old ban on considering race and gender in college admissions, a ruling that the state intends to appeal to the U.S. Supreme Court.
The U.S. 6th Circuit Court of Appeals ruled 8-7 that the affirmative action ban, which Michigan voters passed in a 2006 referendum, violated the U.S. Constitution's equal protection laws. [I would have thought that it ENFORCED equal protection -- JR]
The ruling is the latest step in a years-long legal battle over whether the state's colleges can use race and gender as a factor in choosing which students to admit. The ban's opponents say the case could help strike down anti-affirmative-action policies in other states if it goes to the Supreme Court.
"We think this is a tremendous victory for the tens and hundreds of thousands of students who fought for affirmative action for decades," said Michigan attorney George Washington, who represents the By Any Means Necessary coalition that sued to overturn the ban. "This is a tremendous day for black and Latino students in the entire country," Washington said.
The ruling might take a while to go into effect, if ever. The office of Michigan Attorney General Bill Schuette, who is defending the ban, says the court's rulings take effect only when it issues a mandate, usually weeks later.
But Schuette intends to inform the court that he will appeal to the U.S. Supreme Court, and will ask the appeals court to stay its ruling until the high court can review the case, Schuette spokeswoman Joy Yearout said. Schuette plans to file an appeal with the U.S. Supreme Court within 90 days, his office said.
"(The ban) embodies the fundamental premise of what America is all about: equal opportunity under the law," Schuette said in a news release Thursday. "Entrance to our great universities must be based upon merit."
A three-judge panel from the same court made a similar ruling on the ban last year, 2-1. Schuette then asked the full court to consider the case, leading to Thursday's ruling.
The ban was passed in a 2006 referendum, with 58% voting yes. It was added to the state's constitution, barring publicly funded colleges from granting "preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin."
That prompted a series of lawsuits and appeals from various groups.
In Thursday's ruling, Judge R. Guy Cole wrote that the ban illegally gives minorities fewer ways to persuade colleges to adopt a "race-conscious admissions policy" than people have to influence colleges on other aspects of admissions.
"A black student seeking the adoption of a constitutionally permissible race-conscious admissions policy ... could do only one thing to effect change: She could attempt to amend the Michigan Constitution -- a lengthy, expensive and arduous process -- to repeal the consequences" of the ban, Cole wrote.
On the other hand, a student could do several other things to persuade a college to alter its admissions policy to favor applicants' alumni connections, including lobbying the admissions committee or petitioning the university's leaders, Cole wrote.
"The existence of such a comparative structural burden undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change," Cole wrote.
Michigan voters approved the ban after the U.S. Supreme Court ruled in 2003 that while Michigan universities could use race as a factor in choosing which students to admit, they could not make race the determining factor in deciding whether applicants are accepted
The referendum effort was led by Jennifer Gratz, who was at the center of the high court case. As a white student, she was put on the waiting list for undergraduate admission to the state's largest university. She eventually attended another school, and became the lead plaintiff in a subsequent reverse discrimination lawsuit.
After the Supreme Court's 2003 decision, she began a public campaign to end racial preferences in admissions.
Boise’s proposed Thoughtcrime ordinance
Ordinance O-36-12, a proposed municipal "anti-discrimination" measure being considered by the Boise City Council, would do nothing to protect people from acts of criminal violence. Instead, it would mandate the use of state-sanctioned aggression against business owners who refuse the commercial patronage of gay, lesbian, and bisexual people.
If government has no authority to criminalize private behavior between consenting adults, by what supposed authority can it punish people who withhold their consent from a commercial transaction? Proponents of the ordinance intend to bury that question beneath a blizzard of bromides about tolerance and respect.
About a year ago, City Council President Maryanne Jordan was approached by two Boise residents who claimed to have been assaulted because they were gay. They also claimed that they were afraid to report the crime out of fear that they might suffer repercussions if they went public about their lifestyle. Jordan says this prompted her to devise a measure that would ban discrimination based on "sexual orientation and gender identity or expression" in housing, employment, and public accommodations.
Jordan didn’t disclose any of the details of the alleged assault during the November 13 City Council hearing on the proposed ordinance. In this sense the story told by Jordan is typical of what the Boise Weekly calls "anecdotal reports" that "suggest a recent increase in hate-based crime" against gays and lesbians. Those unconfirmed reports have allegedly grown in number since the last time the state legislature refused to add the category of "sexual orientation" to the state anti-discrimination ordinance.
This suggests one of two possibilities: Either Idaho has a sub-population of violent bigots who are oddly fastidious about following the state anti-discrimination law, or the people who are seeking to change the state law aren’t terribly fastidious about telling the truth.
Idaho was among the first states to enact a "hate crimes" law. According to the most recent official tally, hate crimes – a category that includes rude comments – are all but nonexistent in Idaho. This offers a powerful argument on behalf of the second of the possibilities listed above. That argument was augmented by the turnout at the November 13 Boise City Council meeting.
According to Boise’s NBC affiliate, "There was a line out the door, and also an overflow room for those who came for the reading [of the measure]." Literally hundreds of gay and lesbian people came to offer testimony and public support on behalf of a measure they claimed was necessary because they were paralyzed with fear over the public disclosure of their sexual identity.
"I think what you are seeing is a group of people who are finally getting the chance to stand in front of an elected body and tell their story," insisted Mistie Tolman, co-founder of the Add the Words Campaign (which has lobbied to change the state anti-discrimination law). "So they are coming out in droves to tell them what it’s like not to have those protections."
Those who testified on behalf of the anti-discrimination measure weren’t boldly confronting a hostile Sanhedrin. Every public official at the event expressed support for the proposed ordinance. Boise Mayor David Bieter, who later said he was "honored" to take part in the hearing, made a point of letting the audience know that its input wasn’t necessary, and that the proposed change could be made without public testimony.
Two more public meetings on the measure are scheduled, but the outcome of this process is as predictable a Jay Leno punchline.
What happened on November 13 at Boise City Hall was not a deliberative political function. It was a peculiar kind of revival meeting in which the faithful gathered to declaim against the sin of discrimination – a form of iniquity they seek to eradicate through the righteous and compassionate exercise of official coercion.
As the term is commonly used, discrimination could sometimes be considered sinful. There are situations in which it may constitute a tort. It is never a crime – that is, an act of fraud or violence that injures the property rights of another human being.
A political government may issue edicts against discrimination, and enforce them through the application of aggressive violence. But no government has the power to turn it into an actual crime, any more than it can alter the law of gravity by an official edict.
The only legitimate function of political government, assuming that one exists, is the protection of property rights. Boise’s proposed anti-discrimination ordinance is rooted in the denial of property rights, which – when exercised by insufficiently progressive people – are believed to undermine "fair and equal treatment" of sexual minorities and the "city’s economic well-being."
According to Mayor Bieter, the anti-discrimination ordinance "makes good business sense, because as we look to attract new jobs and businesses, we must demonstrate that Boise offers the same protection as other cities. In short, discrimination is bad for business and counter to our shared ideals."
Like nearly everybody else in the political class, Bieter neither understands, nor cares to learn, how the market functions. If discrimination is truly "bad for business," then profit-minded businessmen won’t discriminate – and the market will reward them.
Nearly every public figure who has endorsed the anti-discrimination measure has taken refuge in a bizarre dialect that is equal parts civic boosterism and cultural bolshevism. Boise is a great and wonderful city, they insist, but it will reach its potential only if its economy is artfully managed by the wise and visionary people who rule it. This will mean, among other things, using government power to identify those who harbor views at odds with the new cultural consensus, and catechizing them at gunpoint until they recant their political heresies.
A year ago, the same civic savants who are promoting the "business-friendly" anti-discrimination ordinance imposed a ban on smoking in both public bars and private clubs. That prohibition, which was also advertised as a way of improving Boise’s business climate, had the predictable effect of driving many club owners into financial ruin.
Individuals who violate the smoking ban face a $69 fine for each infraction – a much milder penalty than the one prescribed for business owners who are accused of violating the anti-discrimination act.
The ordinance would apply to housing, employment, and "public accommodations." An employer, landlord, or businessman could be found in violation of measure without committing an overt act. All that would be necessary is a complaint filed by someone who takes offense over another person’s refusal to engage in commerce.
One illustration of how this would work is offered by the case of New Mexico resident Elaine Hugenin.
In 2006, Hugenin, a wedding photographer, was approached by a woman named Vanessa Wilcock, who wanted to hire her for a "commitment ceremony" with her same-sex partner. Hugenin declined, politely explaining that she was willing to forgo that business opportunity in order to be faithful to her religious commitments.
Where the natural law is concerned, the matter ended there. Nobody’s rights were injured, and Wilcock was free to solicit the services of another photographer. Rather than doing so, she and her partner decided to enlist the state to punish Hugenin for her thought crimes. They filed a discrimination complaint with the state’s "Human Rights Commission," which ruled in their favor and imposed a $6,600 fine on the photographer because she had declined to engage in what should have been a voluntary commercial transaction. (It’s worth noting that New Mexico, like Idaho, does not formally recognize "same-sex marriage," which means that the state engages in the same form of discrimination for which Hugenin was punished.)
The Hugenin case is headed to the New Mexico Supreme Court, which means that it is and will continue to be a huge financial drain on the very limited resources of a small business owner.
Mayor Bieter and the architects of Boise’s anti-discrimination measure would probably reply that the victim was to blame for her plight, and that people who run afoul of the Boise ordinance would be able to avoid serious punishment if they would simply submit to re-education.
Boise residents found guilty of discrimination would face up to a year in jail and a fine of up to $1,000 – unless they agreed to government-imposed "sensitivity training," in which case they would be subject to a $100 penalty and be required to sign an agreement "to not engage in discriminatory practices in the future."
Significantly, section 6-02-05 of the draft ordinance stipulates that "There shall be no right to a trial by jury for an infraction citation or complaint." This provision is facially incompatible with Article I, section 7 of the Idaho Constitution, which dictates that "The right of trial by jury shall remain inviolate" in all criminal cases.
It’s also worth noting that under Boise’s municipal code, sexual orientation discrimination would be treated as an offense as serious as an act of physical assault. What this means is that a landlord who declined to rent a home to a same-sex couple could spend as much time behind bars as an assailant who actually committed an act of physical violence against them.
Thomas Jefferson famously said that his neighbor’s religious beliefs didn’t matter to him because they neither picked his pocket nor broke his leg. To be a crime, an act must involve aggression against the person or property of another human being – that is, it must entail either pocket-picking or leg-breaking.
Boise’s proposed anti-discrimination measure, like similar enactments elsewhere, would empower uniformed leg-breakers to pick the pockets – and incarcerate the persons – of residents whose only offense would be to conduct their business and private affairs peacefully in accordance with their religious and moral beliefs.
Discrimination isn’t a crime. However, seeking to punish it certainly is.
House of Lords threat to derail plans for secret courts
Ministers are heading for defeat today over plans to create secret courts that have been denounced as an affront to justice.
Labour, Lib Dem and crossbench peers are expected to unite in the House of Lords to water down the proposals and give greater powers to judges to resist demands from ministers to hold sensitive cases in private.
Senior Labour sources revealed last night they will work with Lib Dem rebels when the Justice and Security Bill reaches its report stage in the Lords today.
They will back an amendment giving judges the right to ignore government demands for secret justice if it is in the public interest.
A second amendment would demand that secret courts could only be used as a very last resort.
If those measures are not passed, Labour will vote to strip all references to such ‘closed material proceedings’ from the Bill – potentially killing the plans stone dead.
The Government faces the prospect of defeat in the Lords both today and on Wednesday.
Sources close to Ken Clarke, the minister without portfolio who has piloted the plans, hinted there could be further concessions, saying: ‘We want to hear what people have to say this week.’
The Daily Mail has led criticism of plans to allow secret courts, under which civil cases would be conducted entirely in private. Ministers claim they need to hold some cases behind closed doors so that judges can hear evidence on intelligence matters.
The Government has paid millions of pounds to terror suspects who accuse it of complicity in torture and rendition, after ministers said it was impossible to defend such claims without releasing secret material.
Critics argued the Bill will help ministers cover up abuses by the security services.
Shami Chakrabarti, of human rights group Liberty, said: ‘This odious Bill turns British civil courts into Soviet-style secret commissions.’
Amnesty International said: ‘The Bill seems designed to allow the Government to throw a cloak of secrecy over wrongdoing.’
Daily Mail's campaign against secret courts
A spokesman for Labour leader Ed Miliband said: ‘We don’t think there are nearly enough safeguards in the Bill.’
Mr Clarke last night told the Mail that, currently, the ‘finest, wisest judges in the world’ were barred from taking into account some evidence at the heart of important civil cases because of the problems with releasing secret material.
Defending his proposals, he added: ‘I have ensured that under the Bill a closed material procedure could only be used to hear evidence which a judge has found is genuinely national security sensitive. ‘They will never be available in inquests or criminal trials.’ [Hah!]
Poll shows little support in Britain for state regulation of the press
Rules governing the press must be more stringently enforced, according to a poll released ahead of the publication of the Leveson report – but the public do not believe any new legislation is required.
Almost three quarters of those polled (71 per cent) said that the main focus in stopping bad practice in the media should be tougher application of existing laws, with only 24 per cent saying new legislation and regulations were necessary.
The survey comes as Lord Justice Leveson is preparing to publish the results of his inquiry into press standards, which was sparked by the phone hacking scandal at the News of the World.
The judge is expected to call for an overhaul in the way newspapers are regulated, with some campaigners urging him to advocate a system of state regulation, which they say would ensure the industry abides by high standards of journalism and of ethics.
However, others have warned that such a system – even if “light touch” – will lead to politicians and the powerful being able to prevent publication of material embarrassing to them. Rather, they argue that abuses, such as those exposed at the News of the World, can be, and should have been, tackled by existing laws.
The new poll was carried out by the Free Speech Network, an organisation set up to by the publishers of several newspapers, including The Sunday Telegraph, to make the case against state regulation. It has called for “independent self regulation”, enforced by a non-statutory body that would rely on civil law contracts, have investigative powers and the ability to fine publishers up to £1 million.
Bob Satchwell, chairman of the Society of Editors – which is a member of the network – said: “The British people are clear that they want a free press and free speech. We agree. This is why the industry supports a new system, independent of both government and the newspaper industry to ensure the highest standards in the press without undermining its capacity to hold people such as politicians to account.
“We have established a free press in this country over 300 years – we don’t want to reverse this trend. It would send a terrible signal to emerging democracies around the world if this were to end. How can we encourage the freedom of the press and free speech abroad, if we are threatening it at home?”
The study examined public opinion on a wide range of issues raised by the Leveson inquiry.
It appeared to show little appetite for statutory regulation, or greater controls on press practices and widespread support for a free press.
Nine out of ten respondents (91 per cent) said people should be free to say and write whatever they think on matters of public debate, as long as they do not make false statements that damage people’s reputations.
A similar proportion (94 per cent) said that apart from already illegal practices such as phone hacking, computer hacking and making payments to public officials, there was no need to outlaw or regulate additional press practices. Almost two thirds (64 per cent) said they were proud that the UK was regarded as a model of press freedom and freedom of speech.
The public were also asked for their opinions about cases of investigative journalism which sometimes involves the obtaining and publishing of confidential information. They were given two examples - the Telegraph’s exposé of MPs’ expenses, as well as the hacking of phones by the News of the World.
Sixty two per cent believed editors should be able to make a judgement as to whether such methods are in the public interest and that this should be taken into account if any legal action is taken against them. By contrast, 31 per cent thought that journalists obtaining such information should always be prosecuted.
In a further argument against state intervention in the press, half of respondents thought a new system of regulation should be introduced within a year, while 28 per cent wanted it in force within four months.
Opponents of state regulation claim it would take longer than a year to implement such an option, whereas an enhanced form of self regulation could be put in place more swiftly.
The issue of press regulation also ranked low in a list of issues that the public thought their MPs should be concerning themselves with.
Presented with a list of 20 topics, from unemployment and the economy to foreign affairs and illegal drugs, the issue of press regulation was ranked as the second least important. The only subject that people thought their MPs should find less pressing was constitutional reform. Just one in 200 (0.5 per cent) thought regulation of the press should be the top priority for politicians.
The phone hacking scandal also ranked behind allegations of a BBC cover-up of Jimmy Savile’s sex attacks on children, and accusations of police and public officials being paid by journalists, in terms of the issues which most concerned people.
Fifty five per cent ranked the BBC scandal the most concerning, followed by 32 per cent for alleged corrupt payments and just 13 per cent for the phone hacking controversy.
That scandal started with accusations that the mobile phone of Milly Dowler, the murder victim, had been hacked into by the News of the World and messages deleted. However, the subsequent Leveson inquiry has looked into not only wider press practices, but also the conduct of police and politicians.
More than half of those questioned (55 per cent), said the biggest failure the phone hacking scandal had uncovered was journalists not adhering to their own codes of practice, while just under a third (31 per cent) said it was the police not adequately investigating wrongdoing in the press and 14 per cent said it was the politicians for not doing enough to regulate the press.
One of the key issues facing Lord Leveson has been the extent to which any new system of regulation should cover just newspapers and their websites, or whether it should also apply to bloggers and even individuals writing on websites such as Twitter.
The issue was highlighted last week when a number of individuals, including George Monbiot, a Guardian journalist, and Sally Bercow, the wife of the Commons Speaker, used their Twitter feeds to wrongly suggest that Lord McAlpine, the former Conservative Party treasurer, was a paedophile.
When asked who should be covered by a new, tougher system of regulation, 41 per cent said it should apply to bloggers and Twitter users, as well as newspaper journalists. By contrast, 35 per cent said it should only cover newspaper journalists.
The poll also showed support for the argument that a new regulatory system which applies only to newspapers and their websites, will be flawed because there will be no controls over other websites.
More than half of those questioned (55 per cent) said they would turn to the internet to find out about a particular story, if they knew that it was not being published by newspapers because it contravened new laws.
The same proportion (55 per cent) said they would access American websites to read about a story that the UK authorities had decided should not be published here.
The public were also asked their opinions on how any new press industry body should be paid for and whether a new system of regulation should help to make libel actions to be settled more quickly and cheaply. Critics argue that the current system can be too expensive for all but the wealthiest complainants.
Sixty eight per cent wanted a cheaper and quicker system, which was opposed by only nine per cent.
Eighty six per cent said that any new organisation to regulate the press and deal with complaints should be paid for by the newspaper industry, while eight per cent said the taxpayer should support the cost, and six per cent said complainants should support the costs of the new body.
The poll, carried out by Survation, was of 1,000 people from a representative cross section of the population.
Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.
American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.
For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL and EYE ON BRITAIN (Note that EYE ON BRITAIN has regular posts on the reality of socialized medicine). My Home Pages are here or here or here. Email me (John Ray) here.